POLITICS JUNE 18, 2011
“Being a jerk is not a felony”—this was the consensus among pundits within days of John Edwards’s indictment for violating campaign finance laws by inducing two political donors to pay the living expenses of his mistress, Rielle Hunter, and their child, while a former campaign aide posed as the child’s father.
It’s still hard to absorb the magnitude of Edwards’s moral offense, and “jerk” hardly does it justice, but let’s assume that Ruth Marcus of The Washington Post, quoted above, and election law professor Rick Hasen are right that funneling money to a presidential candidate to cover up his extramarital affair and secret child is not a campaign contribution, as the prosecutors contend, but a personal one. It’s less like a campaign ad, and more like the haircuts that Edwards’s centenarian donor Rachel “Bunny” Mellon originally offered to pay for. Ari Melber of The Nation identified one decisive point in favor of that argument: It would be illegal for Edwards to have used campaign funds for such purposes, so it’s implausible for prosecutors to define them now as campaign spending. But what, then, does the Edwards indictment represent?
Marcus and her Post colleagues worry that the Edwards case is an example of the “criminalization of politics,” which they see as a pervasive problem running through the prosecutions of Lewis “Scooter” Libby, Tom DeLay, and various other figures of both parties. “Criminalization of politics,” though, implies that hardball political tactics and fights, like DeLay’s partisan redistricting, have been transferred to the venue of the criminal justice system. Edwards’s deceptions, however, are hardly routine politics, nor are they extreme versions of ordinary tough-guy politics, and, at any rate, his days as an actual political player are long past. Instead, what the Edwards indictment reveals, by its weakness, is just how routine it has become to move money in large and potentially corrupting amounts in support of politicians outside of the normal, regulated campaign finance system. Bunny Mellon’s and Fred Baron’s payments to secure John Edwards’s secret may not have crossed the letter of the campaign finance law, but they surely held the potential for corruption, in that Edwards’s obligations to them—had he kept his secret and won the power of the presidency—would have been beyond measure.
The non-campaign contributions at issue in the Edwards case are but a tiny slice of the unseen money that sluices through our politics these days. There was, for example, Edwards’s own period of employment, if that’s the right word, as a senior adviser to Fortress Investment Group, a hedge fund. While we know to the decimal point how much Fortress’s employees donated to his campaign ($167,460), and exactly who gave it, we have no way of knowing whether the $7.5 million he reported in Fortress fund assets was compensation for his advice, or whether he even gave them any advice. The same is true of several other political figures who took the EZ-Pass lane through hedge funds and came away millionaires, including Rahm Emanuel, Al Gore, and Larry Summers.
And there are countless other ways that money from wealthy people with interests before government now reaches politicians. There are the 501(c)4 tax-exempt organizations, such as Karl Rove’s American Crossroads and several Democratic counterparts launched more recently, which offer the perfect combination of unlimited giving and anonymity. While these organizations aren’t allowed to be used primarily for electoral activity, that rule seems to have gone out the window for lack of enforcement. And then, as The New York Times reported last fall, there are an unknown number 501(c)3 charities organized by members of Congress around pet causes that often do very little charity and mostly serve to host fundraisers or conveniently keep the member’s campaign staffers on payroll during non-election years. Contributions to these organizations are even tax-deductible.
Most of these cash scams and subterfuges are within the letter of the law (even before Citizens United, though that decision seems to have unleashed a sense of “anything goes”), so Marcus and her high-minded editorial board colleagues have little to fear regarding the “criminalization of politics.” But what’s the alternative to legal regulation and potential action by the Federal Election Commission (which its own members admit is paralyzed)? The reflexive answer is “transparency”—if we know who’s giving what, and who the donors are, empowered citizens can hold politicians accountable.
Transparency has made huge leaps in recent years. Just last week, for example, the Sunlight Foundation released a brilliant new tool: the Inbox Influence Explorer. Add it as an extension to your Gmail account, and, whenever you get new mail, it will show you instantly, in a sidebar, all the political contributions from the sender.
It’s certainly interesting, and I’ll admit to being intrigued to find out, for example, that certain libertarian college friends of mine became Obama donors in 2008. But what public interest is really served by this information? Or by the maps now available on The Huffington Post that let you figure out who your neighbors contributed to? Again, I’m endlessly curious, or nosy, especially as I live in a neighborhood with lots of journalists, lobbyists, and political consultants, and it’s always fascinating to know what they’re up to, or to find out the political orientation of my daughter’s friends’ families. It’s not private information, but it’s also not helping me figure out who to vote for or who has influence over my (non-voting) member of Congress.
And here’s where these new tools of transparency come back to Edwards. We’re able to find out a lot, a whole lot, about things that don’t matter—like where our neighbors’ political affiliations lie. But, except in rare, extreme cases like Edwards's, when a prosecutor gets involved, we don’t know much at all about the much, much bigger ways in which money holds sway over politicians.
That’s not a criticism of the transparency movement, which does what it can with what it’s got. Nor is it an endorsement of the Edwards prosecution—let a jury decide. But it is to say, let’s focus on getting the information we can really use, about all the channels by which economic inequality is reinforcing political inequality, rather than being satisfied with trivia. Edwards may be just a jerk, or worse. But, rather than dismissing the case entirely, it should remind us of how much we don’t know, but should, about how money influences and corrupts politicians.
Mark Schmitt is a senior fellow at the Roosevelt Institute and former editor of The American Prospect.
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